Johnathon M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 27, 2020

2019001864 (E.E.O.C. May. 27, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johnathon M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001864 Agency No. 2003-0554-2018106352 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 4, 2019, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Social Science Program Specialist at the Agency’s Eastern Colorado Health Care System in Aurora, Colorado. On September 8, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On December 11, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination on the bases of disability, age, and in reprisal for prior EEO activity. The Agency framed the formal complaint as follows: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019001864 2 on July 27, 2018, the Chief of Staff failed to take appropriate correction action when he reported that the SCAN Echo Program Specialist, elbowed and chest-bumped him. In its January 4, 2019 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Alternatively, the Agency dismissed the formal complaint, which encompassed additional matters, on the grounds that the claims had not been raised with an EEO Counselor and are not “like or related” to matters for which Complainant underwent counseling, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted that for the first time, in his formal complaint, Complainant raised new allegations that he was subjected to discrimination for over the preceding ten years, from 1998 through 2016. Specifically, the Agency noted the following events: (a) in 1998 or 1999, the Program Manager and the Chief of Human Resources abused Complainant and failed to select him for an unspecified position; (b) in 2011, the Chief of Police called Complainant the “N” word; (c) the Chief of Staff and Chief of Police wrongfully hand Complainant arrested by the Denver County Deputy Sheriffs; and (d) in 2016, the Chief of Police wrongly had Complainant issued a parking ticket. The Agency determined that these matters are not like or related to the initial claim raised during counseling because they do not add to clarify the July 27, 2018 incident in which Complainant was allegedly elbowed and chest-bumped by the SCAN Echo Program Specialist. Finally, the Agency dismissed the complaint under the doctrine of laches. The Agency reasoned that the events at issue occurred approximately 20 years. The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO contact and Did not Seek EEO counseling The Agency improperly dismissed the complaint for untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on September 8, 2018. The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Various incidents comprising Complainant’s harassment/hostile work environment claimed occurred within the 45-day time period preceding Complainant’s September 8, 2018 EEO Counselor contact, as discussed above. 2019001864 3 Because a fair reading of the record reflects that the matter identified in the instant complaint is part of that harassment claim, we find that the Agency improperly dismissed it on the grounds of untimely EEO Counselor contact. We also find that the Agency improperly dismissed the complaint on the grounds that Complainant did not seek EEO counseling regarding this matter, and that it is not like or related to matters for which Complainant underwent EEO counseling. A fair reading of the EEO Counselor’s Report as discussed above, reflects Complainant’s claim of harassment was raised during EEO counseling. Moreover, to the extent that the matter was raised in the complaint was not expressly raised during EEO counseling, it is nevertheless like or related to matters for which Complainant underwent EEO counseling. Failure to state a claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Agency improperly dismissed the complaint for failure to state a claim. A fair reading of the formal complaint and the related EEO counseling report indicate that the Agency definition of the claims at issue is too constricted. A more accurate definition of the claim is one of an ongoing pattern of disability, age, and reprisal harassment of which the matter addressed in the Agency’s dismissal was but an example. We note that in an attachment to the instant formal complaint, Complainant stated that he is subjected to ongoing harassment by Agency management. For instance, Complainant stated “I’m filing this complaint today secondary to there being no plausible, tangible, resolution or outcome of any action, that has been generated by VA management, that I can see to this assault. I assert that the organization has done absolutely nothing about RMO [SCAN Echo Program Specialist] assaulting me secondary to my visibly, seeing him in the hallways of the hospital and my continuing to physically avoid him as I’m constantly concerned about my personal safety…I have been informed by my physician that I have a small medical issue with my surgical section also located in my chest.” The record reflects that during EEO counseling, Complainant requests, as a remedy, that the SCAN Echo Program Specialist be removed from his management position, to be promoted to Clinical Mental Health position, and that he receive compensatory damages and attorney’s fees. 2019001864 4 By alleging such a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. United States Postal Service, EEOC Request No. 05930303 (November 12, 1993). Finally, however, we note that to the extent that the basis of reprisal is confined exclusively to union and whistleblower activity, without more, such matters are not covered under the EEO regulations so as to state a viable basis of reprisal. CONCLUSION We REVERSE the Agency’s final decision dismissing Complainant’s formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of Complainant’s request for a hearing, a copy of Complainant’s request for a FAD, or a statement from the agency that it did not receive a response from Complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2019001864 5 If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2019001864 6 Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 27, 2020 Date